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ELRCPartially AllowedELRC Cause (Nairobi) as per Memorandum of Claim - number not stated in judgment· [2022] KEELRC 478 (KLR)

Cheto v Charles (Cause E005 of 2021) [2022] KEELRC 478 (KLR)

Employment and Labour Relations Court
17 March 2022
BMB. O. M. Manani
4,295 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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The Employment Court adopted a Kshs. 624,000 work injury award against an employer who argued about the facts too late, in the wrong forum.

What this practically means

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Executive summary

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The Claimant sought enforcement of an award of Kshs. 624,000/= made by the Director of Occupational Safety and Health Services under the Work Injury Benefits Act, 2007, following an injury sustained on 7th February 2019 while pruning trees. The Respondent denied employing the Claimant, asserting he was an employee of Kazungu Katana, an independent contractor, and alternatively denied the accident occurred. The court noted the internal contradiction in the defense. On evidence, the court found the Claimant was a casual employee of the Respondent, relying on daily payment arrangements, differential payments and the Respondent's provision of tools, and the Respondent's failure to call Kazungu despite the evidential burden on it. The court interpreted section 5(3)(a) WIBA as excluding only casuals not employed for the employer's trade or business. On jurisdiction, the court surveyed the conflicting authorities on enforcement of Director's awards, endorsing the majority position that the ELRC may adopt such awards under article 162 of the Constitution and section 12 of the ELRC Act, but that at the adoption stage it cannot examine the merits; challenges lie only by section 52 appeal or judicial review prior to adoption. The Respondent had pursued neither. The court found the Respondent had been aware of the award earlier than he claimed. The court adopted the Director's award as the judgment of the court, with interest at court rates from the date of the order until payment in full, and awarded costs to the Claimant.

Key legal issues

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01

Employment status of the Claimant

Holding

The Claimant was engaged by the Respondent as a casual employee within section 2 of the Employment Act

Reasoning

The court weighed the Claimant's evidence of daily payment, provision of tools by the Respondent and differential payments, against a handwritten note which did not state an independent contractor arrangement nor mention the Claimant as Kazungu's employee. The Respondent failed to call Kazungu, and the evidential burden of establishing the defense lay on it.

p. 2
02

Scope of section 5(3)(a) WIBA excluding casual employees

Holding

The exclusion covers only casual employees engaged otherwise than for the purposes of the employer's trade or business

Reasoning

The court interpreted section 5(3)(a) WIBA as excluding from the Act only casuals not employed for the purposes of the employer's trade or business; casuals claiming under WIBA must prove engagement in the employer's ordinary business, an issue for the Director or on appeal under section 52.

p. 3
03

Jurisdiction at the enforcement/adoption stage

Holding

At adoption of a Director's award the court cannot reopen the merits; challenges lie only via section 52 appeal or judicial review before adoption

Reasoning

Surveying the authorities, the court endorsed the majority position that ELRC has jurisdiction to adopt Director's awards, but confined itself to enforcement. The Respondent's factual defenses, not raised by appeal or judicial review, could not be entertained. The award was accordingly adopted as judgment of the court.

p. 5

Legal principles established

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  • Unless by way of appeal under section 52 WIBA or judicial review, a court entertaining enforcement of a Director's award cannot consider its merits or conduct a fact-finding inquiry
  • A party who claims not to have been aware of proceedings before the Director and whose appeal time has lapsed must seek judicial review to quash the award before adoption

Court orders

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  1. 1.Adoption of the Director's award of Kshs. 624,000/= as the judgment of the court
  2. 2.Interest on the decretal sum at court rates from the date of the order till payment in full
  3. 3.Costs of the case granted to the Claimant

Authorities

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Legislation

  • Work Injury Benefits Actsections 5, 10, 21, 22, 22(5), 23, 26(4), 51, 52, 52(2)
  • Employment Actsection 2 (definition of casual employee); section 87 (enforcement)
  • Constitution of Kenya, 2010article 162
  • Employment and Labour Relations Court Actsection 12
  • Employment and Labour Relations Court (Procedure) Rulesrules 4, 5 and 28(3)

Cases cited (7)

  • Richard Akama Nyambane v ICG Maltauro Spa
    [2020] eKLR
  • Samson Chweya Mwendabole v Protective Custody Limited
    [2021] eKLR
  • Austin Oduor Odira v Kenya Sweets Limited & another
    [2021] eKLR
  • Lameck Nyakundi Anyona v W.J.J Kenya Construction Company Limited
    [2022] eKLR
  • Edwin Songoroh & another v Amony Koech Yatich & another
    [2021] eKLR
  • Virginia Wangari Muita v Nyoro Construction Company Limited
    [2020] eKLR
  • Ruth Wambui Mwangi & Another v Alfarah Wholesalers
    (2017) eKLR
Jurisdiction invoked
Article 162 of the Constitution read with section 12 of the Employment and Labour Relations Court Act

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Cheto v Charles (Cause E005 of 2021) [2022] KEELRC 478 (KLR)", Case Analysis (2022). ELRC Cause (Nairobi) as per Memorandum of Claim - number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2022/478/eng@2022-03-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.